Joan Biskupic writing for Reuters reports on the fear in the legal community that has caused large law firms to refuse to take on clients who support keeping the “one man, one woman” definition of marriage, U.S. law firms flock to gay-marriage proponents, shun other side (h/t @AdamLiptak):

As U.S. lawsuits seeking gay-marriage rights move toward a likely showdown at the Supreme Court next year, major law firms are rushing to get involved — but only on the side of the proponents.

A Reuters review of more than 100 court filings during the past year shows that at least 30 of the country’s largest firms are representing challengers to state laws banning same-sex marriage. Not a single member of the Am Law 200, a commonly used ranking of the largest U.S. firms by revenue, is defending gay marriage prohibitions.

These numbers and interviews with lawyers on both sides suggest that the legal industry has reached its Mozilla moment. The software company’s CEO, Brendan Eich, resigned in April after being denounced by gay marriage supporters for a donation he had made in support of California’s since-overturned gay marriage ban. Now in a similar vein, attorneys at major law firms are getting the message that if they want to litigate against gay marriage they should do so elsewhere.

None of this will come as a surprise to Legal Insurrection readers.

We wrote in April 2011, how the large law firm of King & Spalding withdrew its representation of the House of Representatives on the DOMA litigation after the Human Rights Campaign started contacting King & Spalding clients unrelated to the litigation,  and threats were made to hold protests at clients’ offices.  King & Spalding did not, however, simultaneously drop its representation of radical Islamic Gitmo detainees who promote societies that treat women and gays as subhuman.

I wrote at the time that there was A Hostile Environment For Pro-Traditional Marriage Views At King & Spalding, such that the expression of any contrary view was a potential career ender.  We now know how true that can be, as the Brendan Eich case demonstrated.

When Obama “evolved” to support gay marriage, it enabled groups like HRC to really take the gloves off by defining pro-traditional marriage supporters as inherently bigoted, and their lawyers not as people who disagree as to constitutional law but as unworthy of hire even by clients unrelated to the marriage issue.

I wrote at the time that the Most important legacy of Obama’s gay marriage switch was freeing Dems to play the “bigot card”:

I can’t say I’m surprised it came to threats from the Mayors of Boston and Chicago, and a Chicago Alderman, to deny Chick-fil-A a business permit because the owners support the traditional definition of marriage as one man – one woman. Or that two other Mayors, in San Francisco and D.C., have jumped on the bandwagon telling Chick-fil-A to stay out of town.

So long as Obama supported the traditional definition of marriage, Democratic politicians and support groups had to tread carefully in how far their rhetoric and actions went. Once Obama came out in support of gay marriage, Democrats were freed to accuse anyone and everyone who supports the traditional definition of marriage as bigoted and unworthy of a place in their jurisdictions.

As Biskupic further reports, HRC is very proud that it has been able to effectively delawyer the opposition of top tier representation:

“Fear is a healthy motivator to do the right thing,” said Fred Sainz, a spokesman for the Human Rights Campaign. “I’m not suggesting that the other side shouldn’t have attorneys. I’m saying we’re going to judge those attorneys.”

Biskupic quotes the resignation letter of Paul Clement, the King & Spalding partner who resigned from the firm rather than acquiesce in dropping representation of the House on DOMA under such pressure:

In his resignation letter, which was made public, Clement said he acted “out of the firmly-held belief that representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.”

Defending unpopular clients and legal positions is what lawyers used to do. Now legal representation of unpopular conservative or religious clients is subjected to political litmus tests applied on no other issues.

Represent a murderer? No problem. Represent Gitmo Jihadists? Sure thing.

Represent someone who disagrees with the trending political wisdom as to the interpretation of the Constitution as relates to gay marriage? Your unrelated clients will be harassed, your law firm disrupted, and your practice destroyed.

I understand why HRC celebrates such damage to the legal community and the tradition of representing unpopular clients and legal positions.

I don’t understand why the legal community let it happen with nary a whimper.


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